SAME‐SEX DIVORCE IN A DOMA STATE

Abstract

When marriages fail, access to judicial divorce is crucial, and typically readily available. When faced with petitions for divorce from same‐sex couples, however, courts in states with Defense of Marriage Acts (DoMAs) are flummoxed; indeed, more often than not, courts in DoMA states refuse access to divorce to same‐sex couples. In this essay, we demonstrate that the courts are wrong. First, the denial of access to divorce is bad policy because it traps couples in defunct relationships and leaves families in a sort of legal limbo—married in some jurisdictions, not married in others, and unable to achieve the finality of divorce. Second, it is constitutionally suspect because the denial of access to divorce violates principles of substantive due process and constitutes unconstitutional discrimination under established equal protection jurisprudence. Finally, the denial of same‐sex divorce is premised on an unnecessarily narrow view of judicial power. State courts, even in DoMA states, have the power to hear and decide divorce petitions—same‐sex or not. In addition, this essay articulates various paths to obtaining same‐sex divorce in DoMA states.Key Points for the Family Court Community: State courts’ refusals to grant a same‐sex divorce is a violation of the petitioners’ federal constitutional rights State courts have subject‐matter jurisdiction over same‐sex divorce—even in states with DoMAs that prohibit the court from recognizing same‐sex marriage. State courts have the power to grant a same‐sex divorce—even in states with DoMAs that prohibit the court from recognizing same‐sex marriage. State courts can grant a same‐sex divorce by applying their own divorce statutes; by applying the divorce statutes of the marrying state; or through their equitable powers—even in states with DoMAs that prohibit the court from recognizing same‐sex marriage.